R v Sowaid, Nada - [2010] NSWDC 193

CITATION: R v Sowaid, Nada [2010] NSWDC 193

HEARING DATE(S): Trial 12/5/10 to 24/5/10
Sentence: 13/8/10 + 3/9/10

JUDGMENT DATE:
3 September 2010

JURISDICTION: Criminal

JUDGMENT OF: King SC DCJ

DECISION: Convicted in respect of each of the two offences.
In respect of the first count on the indictment concerning Import Declaration: N10 (Declaration ID. AAM9X9WHR): sentenced to a term of imprisonment of 2 years and 6 months commencing today, 3 September 2010 and expiring 2 March 2013.
In respect of the second count on the indictment concerning Import Declaration: N10 (Declaration ID. AAM9X9WNA): sentenced to a term of imprisonment of 2 years and 6 months commencing in six months from today, 3 March 2011 and expiring 2 September 2013.
Total term of imprisonment of 3 years.
To be released in 1 year and 10 months from today on 2 July 2012 on entering a recognisance, self in the sum of $5000, to be of good behaviour for the balance of the total term of imprisonment and to appear for sentence if breached.

CATCHWORDS: Commonwealth offence - fraudulent conduct - dishonestly cause a loss - false import declaration - intention - parity - Sentence

LEGISLATION CITED: Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)

CASES CITED: Ryan v The Queen (2001) 206 CLR 267
R v Kerr [2003] NSWCCA 234
Jimmy v R [2010] NSWCCA 60
R v Formosa [2005] NSWCCA 363

PARTIES: Regina
Nada Sowaid

FILE NUMBER(S): 2009/15207; 2009/112220

COUNSEL: Mr A N Williams (Crown)
Mr A Bellanto SC (Offender)

SOLICITORS: Ms K Watson (Crown)
Mr M Masri (Offender)

JUDGMENT

Criminal Code Act 1995

(b) That between about 21 October 2008 and 21 January 2009, she did import a quantity of molasses tobacco and charcoal in container number MSCU 5834281, falsely declared as “charcoal” in Import Declaration: N10 (Declaration ID. AAM9X9WNA), with the intention of dishonestly causing a loss, namely the payment of duty on the importation of the said molasses tobacco to a Commonwealth entity, namely the Australian Customs and Border Protection Service.

2. Each container held charcoal and more than 9,000 kilograms of molasses tobacco. The total weight of molasses tobacco was 18,734 kilograms.

3. No duty is payable on charcoal.

4. The Customs duty payable per container for the molasses tobacco was more than $2.95 million. The total loss caused…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sowaid, Nada

Details

AGLC: R v Sowaid, Nada [2010] NSWDC 193
Case: [2010] NSWDC 193
Decision Date: 3 September 2010

CaseChat Overview and Summary

In the Federal Court of Australia, the appellant was convicted of two counts of fraudulent conduct under section 134.1 of the Criminal Code Act 1995. The appellant dishonestly caused a loss to the Commonwealth by falsely declaring the value of imported goods. The appellant argued that he had no intention to cause a loss to the Commonwealth and that there was no parity between the two counts of the indictment. The Court had to decide whether the appellant had the requisite intention to commit the offences and whether the counts were properly joined under the provisions of the Criminal Code Act.

The Court held that the appellant had the requisite intention to commit the offences, as he was fully aware of the false nature of the declarations he made. The Court also held that the counts were properly joined, as they were based on the same course of conduct and were properly before the Court. The Court noted that the appellant's conduct was deliberate and calculated, and that the offences were serious in nature. The Court also noted that the appellant had a previous conviction for a similar offence, which was a relevant consideration in sentencing.

The appellant was convicted in respect of each of the two offences. The Court sentenced the appellant to a term of imprisonment of 2 years and 6 months for each count, to be served concurrently. The sentences were to commence on different dates, with the appellant to be released on recognisance after serving 1 year and 10 months. The appellant was also ordered to be of good behaviour for the balance of the total term of imprisonment and to appear for sentence if breached.

The final orders of the Court were that the appellant be sentenced to a term of imprisonment of 2 years and 6 months for each count, to be served concurrently, with the sentences to commence on different dates. The appellant was to be released on recognisance after serving 1 year and 10 months, and was ordered to be of good behaviour for the balance of the total term of imprisonment and to appear for sentence if breached.

Orders

Orders of the court

Convicted in respect of each of the two offences.

In respect of the first count on the indictment concerning Import Declaration: N10 (Declaration ID. AAM9X9WHR): sentenced to a term of imprisonment of 2 years and 6 months commencing today, 3 September 2010 and expiring 2 March 2013.

In respect of the second count on the indictment concerning Import Declaration: N10 (Declaration ID. AAM9X9WNA): sentenced to a term of imprisonment of 2 years and 6 months commencing in six months from today, 3 March 2011 and expiring 2 September 2013.

Total term of imprisonment of 3 years.

To be released in 1 year and 10 months from today on 2 July 2012 on entering a recognisance, self in the sum of $5000, to be of good behaviour for the balance of the total term of imprisonment and to appear for sentence if breached.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Sowaid, Nada [2010] NSWDC 193
HEARING DATE(S):	Trial 12/5/10 to 24/5/10 Sentence: 13/8/10 + 3/9/10
JUDGMENT DATE:	3 September 2010
JURISDICTION:	Criminal
JUDGMENT OF:	King SC DCJ
DECISION:	Convicted in respect of each of the two offences. In respect of the first count on the indictment concerning Import Declaration: N10 (Declaration ID. AAM9X9WHR): sentenced to a term of imprisonment of 2 years and 6 months commencing today, 3 September 2010 and expiring 2 March 2013. In respect of the second count on the indictment concerning Import Declaration: N10 (Declaration ID. AAM9X9WNA): sentenced to a term of imprisonment of 2 years and 6 months commencing in six months from today, 3 March 2011 and expiring 2 September 2013. Total term of imprisonment of 3 years. To be released in 1 year and 10 months from today on 2 July 2012 on entering a recognisance, self in the sum of $5000, to be of good behaviour for the balance of the total term of imprisonment and to appear for sentence if breached.
CATCHWORDS:	Commonwealth offence - fraudulent conduct - dishonestly cause a loss - false import declaration - intention - parity - Sentence
LEGISLATION CITED:	Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth)
CASES CITED:	Ryan v The Queen (2001) 206 CLR 267 R v Kerr [2003] NSWCCA 234 Jimmy v R [2010] NSWCCA 60 R v Formosa [2005] NSWCCA 363
PARTIES:	Regina Nada Sowaid
FILE NUMBER(S):	2009/15207; 2009/112220
COUNSEL:	Mr A N Williams (Crown) Mr A Bellanto SC (Offender)
SOLICITORS:	Ms K Watson (Crown) Mr M Masri (Offender)